[Federal Register Volume 68, Number 114 (Friday, June 13, 2003)]
[Notices]
[Pages 35411-35413]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-14934]


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GENERAL ACCOUNTING OFFICE


Administrative Practice and Procedure; Bid Protest Regulations, 
Government Contracts

AGENCY: General Accounting Office.

ACTION: Notice.

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SUMMARY: The Office of Management and Budget (OMB) recently announced 
major revisions to Circular A-76, which governs how Federal agencies 
determine whether to transfer performance of commercial activities from 
the public to the private sector, or vice versa. Performance of 
Commercial Activities, 68 FR 32134 (May 29, 2003). As relevant here, 
the revisions would make competitions involving in-house government 
competitors more similar to private/private competitions conducted 
under the Federal Acquisition Regulation (FAR) than has been the case 
with the competitive sourcing process. This notice solicits comments 
regarding two key legal questions, namely, whether the revisions made 
to the Circular affect the standing of an in-house entity to file a bid 
protest at the General Accounting Office (GAO), and who would have the 
representational capacity to file such a protest. This notice also 
solicits comments on other procedural issues raised by the Circular's 
revisions.

DATES: Comments should be submitted on or before July 16, 2003.

ADDRESSES: Comments concerning these matters may be submitted by e-mail 
at [email protected], or by facsimile at 202-512-9749. Due to 
delivery delays, submission by regular mail is discouraged. Comments 
may be sent by Federal Express or United Parcel Service to: Michael R. 
Golden, Assistant General Counsel, General Accounting Office, 441 G 
Street, NW., Washington, DC 20548.

FOR FURTHER INFORMATION CONTACT: Daniel I. Gordon (Managing Associate 
General Counsel), Michael R. Golden (Assistant General Counsel) or 
Linda S. Lebowitz (Senior Attorney); all three can be reached on 202-
512-9732.

SUPPLEMENTARY INFORMATION: GAO's statutory authority to hear bid 
protests is found in the Competition in Contracting Act of 1984 (CICA), 
31 U.S.C. 3551-56 (2000). CICA establishes the standard for standing to 
file a protest by stating that a protest may be filed by an 
``interested party,'' which is defined in the statute as ``an actual or 
prospective bidder or offeror whose direct economic interest would be 
affected by the award of the contract or by failure to award the 
contract.'' 31 U.S.C. 3551(2); see also Bid Protest Regulations, 4 CFR 
21.0(a) (2003).
    Under this definition, GAO hears bid protests filed by private-
sector firms that have participated in A-76 cost comparisons, since a 
private firm that participated in an A-76 cost comparison is an actual 
offeror whose direct economic interest would be affected by the award 
of the contract or by failure to award the contract. Over the past 
three years, private firms have filed more than 50 protests at GAO 
challenging the conduct of A-76 competitions.
    In contrast, GAO consistently has found that Federal employees and 
their unions cannot protest any aspect of the A-76 competition, because 
they do not meet CICA's definition of an ``interested party,'' so that, 
as a matter of law, GAO lacks authority to consider their protests. In 
American Fed'n of Gov't Employees, AFL-CIO et al., B-282904.2, June 7, 
2000, 2000 CPD ] 87 at 3-4, GAO identified a number of reasons for

[[Page 35412]]

this conclusion. It pointed out that neither individual Federal 
employees, nor the in-house plan (the ``Most Efficient Organization,'' 
or MEO), nor the employees' union representatives are offerors. In 
addition, GAO found that the MEO plan submitted in an A-76 competition 
is not an offer as defined under the FAR, because the MEO does not 
constitute a response to a solicitation (the solicitation currently 
applies only to private-sector competitors), nor would the MEO, if 
adopted, lead to formation of a contract, which is a mutually binding 
legal relationship to perform the services. Indeed, as GAO pointed out, 
no contract is awarded where the MEO prevails in the cost comparison. 
See also American Fed'n of Gov't Employees, B-223323, June 18, 1986, 
86-1 CPD ] 572; American Fed'n of Gov't Employees--Recon., B-219590.3, 
May 6, 1986, 86-1 CPD ] 436 (affirming an earlier dismissal).
    The April 2002 report of the Commercial Activities Panel 
recommended that, in the context of improvements to the Federal 
government's process for making sourcing decisions, a way be found to 
level the playing field by allowing in-house entities to protest at 
GAO, as private-sector competitors are allowed to do. The report noted 
that, if a decision were made to permit the public-sector competitor to 
protest A-76 procurements, the question of who would have 
representational capacity to file such a protest would need to be 
carefully considered.
    By making a number of changes from the predecessor Circular, the 
revised Circular may justify GAO reaching a different conclusion 
regarding the compliance of the in-house entity with CICA's definition 
of an ``interested party.'' Unlike under the predecessor Circular, the 
revised A-76 framework contemplates that the in-house government entity 
will submit an ``agency tender'' in response to the solicitation that 
will be evaluated along with private-sector proposals for purposes of 
ultimately deciding which competitor, public or private, should be 
selected to perform the work. The agency tender will be developed by an 
Agency Tender Official (ATO), defined as an agency official with 
decision-making authority who ``represents the agency tender during 
source selection.'' Revised Circular at D-2. If the agency tender 
prevails in the competition, the revised Circular provides that an 
``MEO letter of obligation'' will be issued to an official responsible 
for performance of the MEO. Revised Circular at B-18. Under the revised 
Circular, this letter of obligation is required to incorporate 
appropriate portions of the solicitation and tender. Id. Under the 
revised Circular, the public sector source's failure to perform in 
accordance with its obligations can result in a termination action. 
Revised Circular at B-20.
    The ATO is among those defined under the revised Circular as a 
``directly interested party'' for purposes of filing an agency-level 
protest of the performance decision. Revised Circular at D-4. The 
revised Circular also defines a ``directly interested party'' to 
include a ``single individual appointed by a majority of directly 
affected employees as their agent.'' Id. In contrast to the ATO's 
defined role in the competition, the revised Circular does not define a 
role for this individual, other than in contesting agency actions taken 
in connection with an A-76 competition.
    It is the cumulative legal impact of these changes that GAO is 
considering in assessing whether an in-house entity should have 
standing to file a bid protest at GAO when a competition is conducted 
under the revised Circular. Under the revised Circular, the agency 
tender appears to be treated more as an offer than under the 
predecessor Circular, and, if the source selection results in a 
decision to accept an agency tender, there will be a letter of 
obligation, which appears intended to bind the in-house entity, in at 
least a quasi-contractual way, to the terms of the solicitation and 
tender. In this regard, it may be viewed as relevant that GAO recently 
found that a public entity could be an interested party under CICA, 
even though, if successful in a competition, it would not be obtaining 
a contract. Federal Prison Indus., Inc., B-290546, July 15, 2002, 2002 
CPD ] 112. Further, as discussed in Department of the Navy--Recon., B-
286194.7, May 29, 2002, 2002 CPD ] 76 at 4, GAO reiterated that the in-
house entity is essentially a competitor and that in preparing the in-
house plan for performance, the MEO team members ``functioned * * * as 
competitors.''
    GAO recognizes that there are various ways to resolve the legal 
question of interested-party status for in-house entities under the 
revised Circular. One way would be through case law. That is, GAO could 
simply wait until a protest is filed by an ATO or another individual or 
entity representing in-house interests; in response to a request for 
dismissal on standing grounds (or at its own initiative), GAO could ask 
the parties to address the matter in submissions and GAO could then 
issue a decision resolving the protester's interested-party status. 
Alternatively, GAO could amend its bid protest regulations to address 
the impact of the revised Circular, or it could issue a notice in the 
Federal Register announcing its legal conclusion. Another alternative 
would be for Congress to amend CICA's definition of an interested party 
for purposes of the filing of protests. Obviously, Congress could act 
even if GAO does not, and, indeed, legislative action would override 
action by GAO through its regulations or its case law. Finally, if it 
is found that GAO does not have authority under CICA to consider such 
protests, GAO could potentially consider protests by the ATO or another 
individual or entity representing in-house interests as ``non-statutory 
protests,'' if agencies agree in writing to have GAO decide the 
protests.
    The purpose of this notice is to solicit comments from the public 
as to which action, if any, GAO should take. GAO would welcome comments 
from contracting agencies, other Federal agencies, individual Federal 
employees, Federal employee unions, contractors and other private-
sector firms, attorneys (from all sectors), and others wishing to 
express a view. The most helpful views will be clear and concise, and 
will reflect familiarity with GAO's bid protest regulations, practice, 
and case law, as well as with the Circular A-76 framework. The key 
questions GAO is seeking views on are: (1) What method of deciding the 
matter GAO should use: case law (that is, wait for a protest presenting 
the question to be decided by GAO), amendment to the bid protest 
regulations, a notice in the Federal Register announcing GAO's legal 
conclusion, or no action by GAO; and (2) if GAO should act, what its 
decision should be--specifically, whether the in-house competitor 
should, or should not, be considered an interested party, and, if so, 
who should be viewed as having representational capacity to file a 
protest at GAO on behalf of the in-house competitor.
    It would also be helpful to know the commenters' views on whether 
counsel for the ATO or the appointed individual would need to apply for 
admission (and what conditions might affect the likelihood of that 
counsel being admitted) to a protective order that GAO would issue (as 
it normally does) to limit access to nonpublic information regarding 
the procurement. See 4 CFR 21.4.
    Finally, commenters may wish to address the impact, if any, on 
their view of the holding from the Court of Appeals for the Federal 
Circuit (consistent with GAO's view, as explained above) that Federal 
employees and their union do not qualify as interested parties to 
protest a decision pursuant to Circular

[[Page 35413]]

A-76. American Fed'n of Gov't Employees, AFL-CIO et al. v. United 
States, 258 F.3d 1294 (Fed. Cir. 2001).
    Another revision to the Circular appears to affect the procedures 
GAO follows in handling protests of A-76 competitions. Under the 
predecessor Circular, parties affected by the cost comparison decision 
were able to challenge the results of the decision under an A-76 
administrative appeal process. In light of the availability of this A-
76 appeals process, GAO had a longstanding rule, based on comity and 
efficiency, that it would generally not hear a protest against the 
propriety of the cost comparison until the A-76 administrative appeals 
procedure provided by the agency had been exhausted. See Intelcom 
Support Servs., Inc., B-234488, Feb. 17, 1989, 89-1 CPD ] 174; Direct 
Delivery Sys., B-198361, May 16, 1980, 80-1 CPD ] 343. This is so, even 
though GAO has recognized that there is no statutory or regulatory 
requirement that an offeror exhaust available agency-level remedies 
before protesting to GAO. See BAE Sys., B-287189, B-287189.2, May 14, 
2001, 2001 CPD ] 86 at 17.
    The revised Circular abolishes the administrative appeals process, 
and instead provides that a ``directly interested party'' may contest 
various aspects of a standard competition by filing an agency-level 
protest. Under GAO's Bid Protest Regulations, protesters are not 
required to file an agency-level protest before filing a protest at 
GAO. In light of the revised Circular's abolition of the special A-76 
administrative appeal process, GAO solicits comments on whether it 
would be appropriate to continue to apply the exhaustion doctrine to A-
76 protests or whether protesters should now be permitted to file their 
A-76 challenges directly with GAO.
    Finally, the revised Circular states that ``no party may contest 
any aspect of a streamlined competition.'' Revised Circular at B-20. 
Under the revised Circular, a streamlined competition may entail 
issuance of a solicitation for proposals from the private sector, but 
that is not required. Revised Circular at B-4. GAO solicits comments on 
whether it would have a legal basis to consider a protest, from either 
the private or the public sector, regarding a streamlined competition.

Anthony H. Gamboa,
General Counsel.
[FR Doc. 03-14934 Filed 6-12-03; 8:45 am]
BILLING CODE 1610-02-P